The executors filed the bill in this suit to have the construction of this codicil determined.

Mr. Willcock, Q.C., and Mr. Schomberg, for the Plaintiffs.

Mr. Daniel, Q.C., and Mr. R. Pryor, for the Countess Berchtoldt (formerly the said Matilda), claimed the leaseholds absolutely, citing Harris v. Davis (1 Coll. 416). Mr. Chandless, Q.C., and Mr. Vincent and Mr. Tripp, for other parties.

Mr. Rolt, Q.C., and Mr. Erskine, for the Princess de St. [647] Antimo Ruffo (formerly the said Louisa). The gift to Matilda was of a life interest only. The words "remainder to Louisa" can have no other meaning than "after her death to Louisa." In Saunders v. Vautier (Cr. & Ph. 249) Lord Cottenham observed upon the importance of the addition of the words "executors, administrators and assigns," in a gift of personalty; and it is a fair argument that the absence of those words affords at least an inference that the gift was not intended to be of an absolute interest, which inference is confirmed by the gift over. They cited also Doe d. Phipps v. Lord Mulgrave (5 T. R. 320), which is stated in the judgment.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I am of opinion that, for the purposes of this question, there is no difference between a specific bequest of leaseholds or any other chattel. If there be an executory gift over of leaseholds, which fails, the property being given away from the executors, the specific legatee for life takes the absolute interest, though that probably was not the intention. I do not know that the rules of construction as to leaseholds are different from those which apply to the gift of any other chattels. If this had been a limitation of a sum of stock to A. for life, remainder to B., remainder to C., I should have had little doubt that the testator, using the expression "remainder to C.," must have thought there would be something for C. to take. The same rule seems to apply to leaseholds. I must suppose that the testator considered there was something remaining after the interests previously given, which would pass by the gift to Louisa. The only mode in which that could have effect would be by reducing the former gift to Matilda to a life interest. The [648] peculiarity here is that the first gift was expressly for life, so that some difference seems to be made in the gift to Matilda. In that respect the case of Doe d. Phipps v. Mulgrave (5 T. R. 320), which has been cited, seems to have a bearing upon this case. The will there was very loosely worded, there being a devise in trust for the testator's first and other sons in tail male, and on failure of such issue, to the testator's brother Henry and his first and other sons in tail male. And there was a question whether Henry should not take an estate in tail male as well as his sons; and Lord Kenyon, C.J., and Buller, J., decided that he took only a life-estate, with remainder in tail to his issue, the latter expressing himself thus: "This will, though expressed in such short terms, is so clear that no person but a technical lawyer can entertain a doubt with respect to its meaning. It is an epitome of a strict settlement. The whole is inaccurate, for the devisor begins with giving his estates, not to trustees, but in trust to certain persons, and there is no limitation at all to their heirs. As to the principal question: the devisor has not said in express terms that he devised to his brother Henry for life; but it manifestly appears that it was his intention that his brothers should only take life-estates. In this case we are not hampered by technical words, and we have only to consider the plain meaning of the devisor, which, I think, was to limit his estate in strict settlement to his brothers in succession."

In this case the words are loose and inaccurate; but I think that, to any but a lawyer's mind, embarrassed by the technical meaning of particular words, the construction must be that this was a gift of successive life interests to Charlotte and Matilda. It is true that a limitation of a chattel to A. simply gives an absolute interest; and for [649] that reason there is great force in the observation of Lord Cottenham in Saunders v. Vautier (Cr. & Ph. 249) that the question whether words of limitation are added may be of considerable consequence in ascertaining the intention of the testator. Of course, if the limitation had been to Matilda, her executors and administrators, there would have been no doubt. So, also, if the limitation had been to her and the heirs of her body, the rule of law would give her the absolute interest; but to make me conclude that the testator has endeavoured to violate some rule of law in the limitation over, and thus prevent its taking effect, I must have a distinct

indication of such an attempt on his part. If there be such an indication the gift over is void; if not, why am I to infer that he intended to give an absolute interest to Matilda, and then a remainder over, which would be repugnant both to the rules of law and common-sense? Considering that I am bound to give effect, if possible, to all the words of this bequest, and that there is nothing which expressly shews a clear intention to give an absolute interest to Matilda, I think the true construction is that she takes a life interest only.

[650] NASH v. HODGSON. July 4, 1854.

[S. C. reversed, 6 De G. M. & G. 474; 43 E. R. 1318 (with note, to which add In re Boswell, [1906] 2 Ch. 368).]

Statute of Limitations. Payment of Interest. Appropriation.

Where a debtor owes principal and interest upon three promissory notes, and the remedy in respect of two of them is barred by the Statute of Limitations, if the creditor requests payment of interest generally, and the debtor makes a small payment on account, without specifying in respect of which debt such payment is made, this is not such an unequivocal acknowledgment of the debts which are barred as to prevent the operation of the statute.

The creditor may appropriate a general payment of this kind to either of the debts, but such appropriation will not avoid the effect of the statute, unless acknowledged in some manner by the debtor.

John Appleton gave three joint and several promissory notes to Eliza Moore, for sums of money which he had borrowed from her, and lawful interest for the same. Two of these promissory notes were signed by John Appleton and Joseph Moore, and were dated in January 1840 and June 1839. The third was dated in June 1841, and was signed by John Appleton and Hanna Smith, widow, who had since died.

In September 1850 Eliza Moore, who had since married the Plaintiff, Nash, joined with him as Co-plaintiff in the claim in this suit for payment of the money due on the last-mentioned note against the executors of Hanna Smith, of whom the said John Appleton was one.

An inquiry was directed at the hearing whether any money had been paid within six years before the filing of the claim for interest on the last-mentioned promissory note.

The Master found that, on the 16th of December 1846, £5 was paid by John Appleton for interest on the said note, and to this report exceptions were now taken.

It appeared that, in December 1846, Eliza Moore was residing with John Appleton, and that she " applied to him for a payment on account of interest then due to her; and that, on the 16th of that month, he paid to her £5, as she alleged, "on account of interest generally;" and that, shortly afterwards, on returning to Birmingham, where the promissory note of 1841 was deposited with a friend, she indorsed upon it a memorandum that the £5 had been received "for interest due on this note."

[651] Mr. Willcock, Q.C., and Mr. Shebbeare, for the exception. The debt upon this promissory note is barred by the Statute of Limitations, 9 Geo. 4, c. 14, s. 1. In Holme v. Green (1 Stark. 488) a payment on account by one of two joint debtors did not avoid the effect of the statute. In Tippetts v. Heane (1 Cr. M. & R. 252) a general payment of £10 by the direction of the debtor to the creditor, there being no evidence on what particular account it was paid, was not a sufficient admission of a greater debt. In Waters v. Tompkins (2 Cr. M. & R. 723), where a sum of £200 and interest was due on several promissory notes, and the debtor made a payment of a small sum generally, in consequence of an application by the creditor for interest upon the £200, that was held to be a sufficient part payment within 9 Geo. 4, c. 14. In Mills v. Fowkes (5 Bing. (N. S.) 455) it was held that a creditor had a right to appropriate a payment made generally by the debtor to a debt barred by the statute; but that such appropriation would not avoid the effect of the statute, as, for that purpose, there

must be an appropriation by the debtor. They cited also Waugh v. Cope (6 M. & W. 824) and Bunn v. Boulton (2 C. B. 476).

Mr. Rolt, Q.C., and Mr. Greene, contrà. The payment on account is a sufficient payment to keep alive the remedy for this debt. Wyatt v. Hodson (8 Bing. 309) proves that payment of interest by one of several joint debtors is for this purpose equivalent to a payment by them all. The payment here, being general, was on account of all the debts, that is, partly on account of each, and therefore it was an acknowledgment of them all. If not, then the appropriation by the creditor, having been made as soon as [652] possible after the payment, to the debt of 1841, prevents the operation of the statute as to that debt.

The reply was not heard.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I think that this exception must be allowed. The reason why the Statute of Limitations has permitted part payment of a debt to operate as an acknowledgment of its existence at that time is, because it is an unequivocal act, and affords prima facie evidence that the party so paying owes the money. If there be only one debt, of course the payment must be in respect of that one. If it is shewn that there were two debts contracted at different times, something beyond the mere fact of payment is necessary; for that alone does not shew in respect of which debt payment is made. Here there are three promissory notes, two of which were barred by the statute, and the Plaintiff, Mrs. Nash, made a demand for interest generally. It was competent for the Defendant to claim the benefit of the Statute of Limitations as to some of the notes; but he admitted that he owed interest which she had claimed generally. The difficulty is, in respect of which debt he made that admission; and the Plaintiff has to make out that, by paying this money in respect of interest, the Defendant admitted that he owed her money upon the promissory note of 1841. It seems to me that this payment was not such an unequivocal acknowledgment of this particular debt as would be sufficient for the satisfaction of a jury. Everyone of the cases cited proceeds upon that principle. In Mills v. Fowkes (5 Bing. (N. S.) 455) the party owed two debts, one of which was barred by the statute, and one [653] was not. The question was whether, having made a payment without any appropriation at all, the creditor had a right to say that the payment was made in respect of both debts; but the Court refused to decide whether it was in respect of one or the other. In this case the creditor afterwards appropriated the payment to the interest due on the promissory note of 1841, as by law she had a right to do; but that appropriation could have no effect upon the operation of the Statute of Limitations, unless it had been communicated to the debtor and sanctioned by him, and so might have a retrospective effect as an acknowledgment of the debt. If the debtor in such a case were to say, I make this payment in respect of my debt of £200 to you, and he owed several debts, amounting in the whole to £200, that would be an acknowledgment of them all. So if, in this case, the Plaintiff had written a letter to this Defendant, mentioning that the interest on the three notes was in arrear, and requesting payment on account of such interest, a general payment would have been an admission of all the debts; but there is nothing to satisfy the Court that the payment which has actually been made was an unequivocal acknowledgment of the debt in dispute, because it was just as much to be attributed to one of the debts as to another of them.

[654] TATLOCK v. JENKINS. July 5, 1854.

[S. C. 23 L. J. Ch. 767; 18 Jur. 891.]

Will. Mixed Fund. Charge. Apportionment.

If a testator blends the proceeds of his real and personal estate into one fund, and makes a charge upon the mixed fund, and a devastavit of the personal estate occurs, or the testator by a codicil devises the real estate to another person free from the charge, the charge does not fail proportionably, but must be raised out of the remaining estate.

Catherine Tatlock, by her will, dated in July 1840, devised all her real estate to trustees, upon trust, by sale or mortgage "to raise in aid of her personal estate not specifically bequeathed (if insufficient) so much money as should be requisite to satisfy" her debts, funeral and testamentary expenses and legacies. The will then contained the usual provision that the trustees should have power to give good receipts, and provided that any surplus of the money to arise by such sale or mortgage should be added to the personal estate of the testatrix, and be applied accordingly; and, after giving various legacies, the testatrix declared that her real estate, subject as aforesaid, and also the residue, if any, which, "after making the payments and appropriation aforesaid," should remain of her personal estate, should be held upon trust for Mary Tatlock for life; and from and after her decease, "but as to both estates subject also to the provision next hereinafter contained" for Henry Jenkins, his heirs, executors, administrators and assigns: Provided that Mary Tatlock should have power by will or codicil to appoint any sum or sums of money not exceeding £5000 to any person or persons; and the testatrix charged her "said real and residuary personal estates with the payment of the sum or sums which the said Mary Tatlock might so give, bequeath or appoint;" and she appointed the said Henry Jenkins and Mary Tatlock executors.

By a codicil, dated in 1859, the testatrix devised all her real estates to Mary Tatlock, in fee-simple "freed and discharged from all my debts, liabilities and engagements; and also from any charges created by my said will, if any; and in all other respects I confirm my said will."

[655] This was a suit by Mary Tatlock against Henry Jenkins for administration; and the question was whether the exoneration of the real estate devised by the codicil to Mary Tatlock threw the burden of the charge of £5000 upon the residuary personal estate.

Mr. Daniel, Q.C., and Mr. R. Prior, for the Plaintiff.

Mr. Rolt, Q.C., and Mr. J. V. Prior, for the Defendant.

The codicil, taking the real estate out of the mixed fund, upon which the £5000 was charged, does not throw the whole charge upon the personal estate; but the charge fails so far as it would have been payable out of the real estate. In Roberts v. Walker (1 Russ. & My. 752) a testator directed his real and personal estate to be converted and applied in payment of debts and legacies; and it was held they should contribute rateably, and if any of the legacies failed by lapse, the heir and next of kin took the benefit of such failure in proportion to the respective values of the real and personal estates. [THE VICE-CHANCELLOR. That is as regards the parties who take subject to the charge; but, as regards the person interested in the charge, is not he entitled to raise it out of either fund? Suppose there had been a devastavit, could not he raise the whole charge out of the real estate?] The principle of that decision is, that part of the charge is fixed upon one fund, part upon the other, exclusively. [THE VICE-CHANCELLOR. Surely not with respect to the person entitled to the charge? With respect to the persons entitled to the funds subject to the charge, the decision was that the testatrix had no intention to favour one more than the other.] In Falkner v. Grace (9 Hare, 282) an annuity, directed to be paid out of the rents of real estate and the proceeds of personalty, was held to be appor-[656]tionable between them. The testatrix did not intend to deprive the Defendant of all the real estate, and at the same time to subject him to the whole burden of the charge.

The reply was not heard.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I cannot have any doubt concerning the effect of this charge. I think that Roberts v. Walker (1 Russ. & My. 752) and that class of cases have been misunderstood in this argument. If a testator directs his real estate to be sold, and blends the proceeds with his personal estate into a mixed fund, any charge upon this fund falls pro ratâ upon the proceeds of the real and personal estate, as between the persons entitled to them, because the testator intended that these funds should be rateably subject to the charge, and did not mean in this respect to favour one of the persons entitled more than the other. But, with respect to the person entitled to the charge, it would be altogether novel, and would create great confusion, if I were to hold in cases like Roberts v. Walker (Ibid.), where the real and personal estate are blended in one fund, that, if the property which

would have fallen into the common fund be taken out of it by a subsequent gift, there must be a proportional abatement of the charge. I think that such a doctrine could not be maintained; and I cannot distinguish such a case from that now before me. There is here a charge of £5000 upon all the real and personal estate, and the person entitled to the charge would have a right to take it out of all or any particular part of the property so charged, subject of course to the rule, as between the persons interested in the property subject to the charge that they must share it rateably. [657] The question is whether such a charge would be diminished by a codicil taking the real estate out of the mixed fund and giving it away to a devisee beneficially. Here such a gift has been made, expressly free from any charge created by the will, which of course includes the charge of £5000. It has been argued that the testatrix, having created a mixed fund, and made this general charge upon it, and having subsequently taken away part of the fund and declared that it shall be free from the charge, it is freed from that proportion of the charge which it would otherwise have had to bear, and consequently this part cannot now be raised. But I think that the effect of taking this estate out of the common fund is to leave what remains subject to the whole charge.

Declare that the personal estate of the testatrix is subject to such charge, not exceeding the sum of £5000, as Mary Tatlock may make by any testamentary appointment.

[658] TATE v. LEITHEAD. July 14, 1854.

[See Bromley v. Brunton, 1868, L. R. 6 Eq. 277.]

Voluntary Trust. Cheque. Donatio Mortis Causa.

A man, in his last illness, a few days before his death, made a codicil to his will, giving certain benefits to his son-in-law A., and appointing B. his executor. On the same day the testator drew a cheque on a plain sheet of paper for £900, payable to B., to whom he owed £200, and wrote on the same sheet, "A. £200, B. £200, executorship fund £500." The cheque was presented and paid before the testator's death. Held, that this was not a donatio mortis causâ, but a complete trust of £200 in A.'s favour; and that it was not necessary that he should have any notice of it previously to the testator's death.

A donatio mortis causâ is subject to the donor's debts.

John Forster, the testator in this cause, by his will and codicil, dated in 1850, made certain bequests to his son-in-law, Harley Robert Johnston, and appointed Thomas Leithead and his nephew, George Forster, executors.

Upon the day on which he made the codicil to his will the testator wrote upon a plain sheet of paper a cheque for £900 upon Messrs. Glyn & Co., bankers, payable to the said Thomas Leithead; and on the same sheet of paper the testator also wrote the following memorandum :

"Harley Robert Johnston
Thomas Leithead, Esq.
Executorship Fund

£200

200

500

£900."

This cheque and memorandum the testator then handed to Thomas Leithead, and desired him to keep £200 in discharge of a debt of that amount owed to him by the testator, to hold £200 for the said Harley Robert Johnston, and the testator directed that the remaining £500 should be treated as part of his general estate.

At the time of these transactions the testator was confined to his bed, without hope

of recovery of the illness of which he died a few days afterwards.

On the same day Thomas Leithead sent by post the cheque for £900 to Messrs.